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Bail Applications In The Children’s Court (Vic)

When a young person between 10 and 18 is charged with criminal offences in Victoria, they may be remanded in custody or granted bail. When a child applies for bail, some additional considerations apply as well as the matters that are considered in any bail application. This article deals with bail applications in the Children’s Court of Victoria.

Process for applying for bail

When a young person is taken into custody and refused bail by the police, they must be brought before a bail justice within 24 hours or brought before a court on the next working day so that they have the opportunity to apply for bail. A parent, guardian or other independent person (such as a lawyer) must be present during the proceeding. This person may take steps to facilitate the bail application, such as by organising accommodation or a surety.

Presumption in favour of bail

It was established in the 2012 Victorian Supreme Court decision that the “decision to hold a child in custody should be made only as of a last resort”.

However, there are some statutory exceptions to the presumption in favour of bail. These are:

  • where the young person poses an unacceptable risk;
  • where the young person is facing charges that require the court to refuse bail unless there are compelling reasons to grant bail; and
  • where the young person is facing charges that require the court to refuse bail unless there are exceptional circumstances.

Unacceptable risk

As in an adult bail application, the decision as to whether or not to grant bail to a child is made based on whether there is an unacceptable risk that the person, if granted bail, would:

  • commit an offence;
  • endanger the safety or welfare of a person;
  • interfere with a witness or obstruct the course of justice;
  • fail to surrender into custody in accordance with their bail conditions.

These criteria are set out in section 4E of the Bail Act 1977.

Exceptional circumstances or compelling reasons

In some matters, the court may grant bail only if satisfied that there are compelling reasons to do so. In other matters, the court may grant bail only in exceptional circumstances.  This may be because the alleged offences are particularly serious, because the person has a record for committing particularly serious offences, or because the offence was allegedly committed while on bail or while subject to another court order.

Additional considerations in bail applications by a child

When dealing with a bail application by a child, the court must also take into account additional considerations. These are:

  • what options are available;
  • the need to maintain and improve the child’s relationship with their parents, carers or guardians;
  • the desirability of enabling the child’s current living arrangements to continue without disturbance;
  • the desirability of facilitating the child’s continued education, training or employment;
  • the need to minimise the stigma resulting from being in custody;
  • the likely sentence the child would receive if found guilty; and
  • the need to not make bail conditions too onerous, so as to prevent them from constituting the “unfair management of the child.”

Matters such as the child’s age, prior criminal history (especially with respect to complying with prior bail undertakings) as well as their general circumstances such as school attendance, living arrangements and the adult support and guidance that is available, are all relevant in determining eligibility for bail. These circumstances will be weighed against the degree and nature of the risks associated with releasing the young person. For example, in the matter of Re E.A. [2016] VSC 378 [16]-[18], a 17-year-old with no prior criminal history and “sound family background” was refused bail after having breached two prior bail undertakings by committing further offences. This was primarily due to his age and the greater “danger to public safety” that he posed.

The general principle in these matters is that “the custody or detention of a child should be avoided unless unavoidable”: (Re E.A. [2016] VSC 378 [16]-[18]). Circumstances that would not enable the grant of bail for an adult may be sufficient where the accused is a child. As such a bail application for a young person will be viewed in a vastly different light than it would be if the accused were an adult and as such must be prepared quite differently.

Where young person is granted bail

If a young person cannot understand a bail undertaking, their parent or guardian may enter into the undertaking on their behalf. This means that the person who enters the undertaking is then responsible for producing the child at the next court date. A person should not enter into an undertaking of this nature unless they are certain they can comply with it.

If the court grants bail to a young person, and the young person breaches their bail conditions, they may be arrested and brought before the court. The court may remand them, or grant them bail again with the same or different conditions.

It is important to note that the child cannot be charged with breaching a conduct condition of their bail. When an adult breaches a conduct condition, they are committing an offence under section 30A of the Bail Act. When a young person does so, police may only revoke the bail and require the child to be remanded.

Where young person is refused bail

If bail is refused to a young person, the court must list the next hearing of the matter within 21 days, so that the child is not remanded for a longer period. Once a young person is remanded following an unsuccessful bail application, they must be held in a remand centre. This will occur at Malmsbury Youth Justice Precinct for males and aged 15 and over, or at Parkville Youth Justice Precinct – for males and females between 10 and 18.

If you require legal advice or representation in relation to any legal matter, please contact Armstrong Legal. 

Deike Kemper - Senior Associate - Melbourne

This article was written by Deike Kemper - Senior Associate - Melbourne

Deike Kemper holds a Juris Doctor (Master of Laws degree) from Monash University, a Graduate Diploma of Legal Practice from the College of Law and a Graduate Certificate of Forensic Psychology from Curtin University. She is admitted to practice in the Supreme Court of Victoria and the High Court of Australia. Deike’s main area of practice is criminal law. She...

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